Council unlawfully granting outline planning permission – Landowner relying upon permission believing it to be valid – Environment Secretary modifying permission after inquiry – Compensation payable to landowner – Appellant councillor seeking to have permission quashed – Judge refusing to exercise discretion to quash permission – Whether judge erred – Appeal dismissed
The interested party, Land & Property Ltd (L&P), owned Victoria Business Park, which had the benefit of three outline planning permissions (the 1993, 1994 and 1997 permissions respectively) permitting, inter alia, the erection of buildings for non-food retail use. In July 1997 L&P made an application for the approval of reserved matters in respect of the 1997 permission.
Restormel Borough Council failed to refer the 1994 and 1997 permissions to the Secretary of State for the Environment, Transport and the Regions as departures from the development plan, as required by the Town and Country Planning (Development Plan and Consultation) Directions 1992. As a result, the Environment Secretary directed that a local public inquiry be held. At the inquiry, the inspector concluded that the grants of planning permission had been grossly wrong because they conflicted with the relevant development plan policies. He further said that because of the failure to refer the applications to the Environment Secretary, no evidence was available to show that there were material considerations, taken into account at the time the permissions were granted, that would have outweighed the conflict. Consequently, the inspector recommended that the 1994 and 1997 permissions be modified by removing non-food retail use from the matters permitted. The Environment Secretary agreed with the inspector and decided to modify the 1997 permission (the 1994 permission having by then expired). As a result, L&P became entitled to compensation from the council for loss attributable to the modification.
In order to avoid the council’s liability to pay compensation, the appellant councillor applied to have the unlawfully granted permission quashed, his reasoning being that a quashed permission has no value and its modification can therefore cause no loss. The council played no part in those proceedings. The judge held that the council had acted unlawfully in granting the 1997 permission, but he refused, as a matter of discretion, to quash it. In arriving at his decision, he took into account the consideration that quashing would serve no planning purpose, since the planning harm that would follow from implementation of the permission had been prevented by the modification. The appellant appealed, contending that the permission, which had been unlawfully granted, should be treated as though it had never had any legal existence. He submitted that the judge should have quashed the unlawful decision unless L&P could have shown that that would harm it or there was some other reason for the permission not to be struck down.
Held: The appeal was dismissed.
1. When considering whether to quash the permission, the judge was entitled to have in mind that: (i) no adverse planning consequences would fall on the public as a result of a refusal to quash; and (ii) parliament provided for compensation to be paid to the landowner whose permission was revoked. The crucial question to be resolved was whether council-tax payers should suffer the result of an unlawful decision by their council that had, at all relevant times, been presented by the council as being a lawful decision, or whether the landowner should suffer from that unlawful decision without compensation. The judge held that L&P should not be deprived of its compensation purely as a result of the automatic application of jurisprudential doctrines in relation to invalidity.
2. For a good many years, L&P had been allowed to rely upon what was ostensibly a valid grant of permission. Although the grant was a serious abuse of power, all the illegitimate effects of the grant were cured by the modification. Striking down the permission at this stage had no other purpose and no other effect than to subvert L&P’s consequent entitlement to compensation.
Christopher Katkowski QC and John Litton (instructed by Russell Jones & Walker) appeared for the appellant; Guy Roots QC and Robert Walton (instructed by Stephens & Scown, of St Austell) appeared for the interested party, Land & Property Ltd; the respondents did not appear and were not represented.
Thomas Elliott, barrister
